GEOFFREY BOYCOTT’S JOINT TENANT WAS A TENANT IN COMMON

Famously plain speaking Yorkshire man and former international English cricketer, Geoffrey Boycott ran into a spot of bother in the High Court in London recently on the important distinction between the legal concepts of “tenants in common” and “joint tenants” in property ownership.

Mr Boycott purchased a house in joint names with his former partner Anne Wyatt in 1996. The relationship subsequently came to an end. Mr Boycott believed that he owned the house as a joint tenant with Mrs Wyatt and stated that he allowed her to live their rent free up to her death in 2009.

After Mrs Wyatt’s death Mr Boycott stated that he discovered to his “huge surprise” that Mrs Wyatt had changed the joint ownership in 2007 from a joint tenancy to a tenancy in common.

The difference between the two forms of ownership is one that Mr Boycott described as “double dutch”. Personally, I find the concepts of leg before wicket and the Duckworth Lewis Method completely impenetrable, but there you go.

Property owners considering how their property will pass on their death, or more to the point, on the death of anyone else with whom they own property jointly, should understand the difference.

A joint tenancy is a form of joint ownership of property where the property is not divided into shares, the joint owners (referred to as joint tenants) simply own the entire property between them. The most important feature of this type of joint ownership is that the property passes to the surviving joint owner or owners on the death of one of them by what is referred to as survivorship. In other words the joint owner cannot leave the property in their will to anyone else, it will automatically pass to the other joint owner(s) on their death. It is the most common form of ownership between married couples. On the death of one spouse the property passes automatically to the survivor on production of a death certificate without the need for a grant of probate.

In a tenancy in common the property is divided into shares and held by the joint owners (referred to as tenants in common) in those shares. The shares can be equal: halves (in legal jargon referred to as moieties), thirds, quarters etc or unequal 80/20, 60/40 etc. The most important distinction here is that a share held in a property by a tenant in common will on their death pass with their estate, i.e. if they have made a will it will pass to whoever is entitled under their will or if they have not made a will it will pass to their next of kin under the rules of intestacy. This is the most common form of ownership in the case of business or investment properties. The joint owners do not necessarily wish the property to pass to their business partner or fellow investor on their death. It is also appropriate in many cases of joint ownership of property where a the owners contribute the purchase money in unequal shares and wish to have this reflected in the ownership structure.

In Mr Boycott’s case, the other joint owner had converted the joint tenancy to a tenancy in common in 2007. This is called severing the joint tenancy and in the UK can be done unilaterally by one joint owner sending a notice to the other of their intention to sever the joint tenancy after which the owners hold the property as tenants in common.

Could this happen here? Well up to 2009, it was possible for one owner to unilaterally sever a joint tenancy and there were various acts that could have had that effect. Observant readers of this blog made have noted that prior to 2009 once a judgment mortgage was registered against the interest of one joint tenant that had the effect of severing the joint tenancy between the co-owners.

However, the Conveyancing and Land Law Reform Act, 2009 changed the position here, with the effect that now a joint tenancy can only be converted to a tenancy in common by agreement between the parties or by court order. The 2009 Act also confirmed that registration of a judgment mortgage no longer severs a joint tenancy.

The system of being able to sever a joint tenancy unilaterally on notice to the other joint owner, such as exists in Britain, can be useful in the case of relationship breakdown when a couple (either married or otherwise) who own property as joint tenants separate.

In Ireland, where a person owns a property with another as a joint tenant and the relationship changes to the point where they no longer wish the other joint owner to inherit the property automatically on their death that should be recorded in a written agreement, or if that is not possible, a court order should be obtained to convert the joint tenancy to a tenancy in common. Failure to do so could result in huge surprises of the nasty variety.